Justice Barnabás Lenkovics was chosen by a two-thirds majority of the Hungarian parliament today to replace Péter Paczolay as Chief Justice of the Constitutional Court from 25 February 2015. An expert in civil and property law, Lenkovics was nominated to the post on Friday by the president of the Hungarian parliament, László Kövér.
“Lenkovics has been a reliable vote for the new Fidesz constitutional system and he has voted with the new Fidesz judges in almost every case since 2010,” writes Princeton’s Kim Lane Scheppele, an expert on Hungary’s Constitutional Court. “In taking advantage of the end of Paczolay’s term, the government now has a reliable ally in the Court president’s office.”
Elected to the Constitutional Court in 2007 as the nominee of the Fidesz-dominated political opposition, Lenkovics’ nine-year term is due to expire next year. However, as he is only 64 years of age, Lenkovics will be eligible for re-election next year to a twelve-year term, meaning he will likely preside over the Court until 2027.
Prior to 2012 the president of the Constitutional Court was elected by the justices themselves. However, Article 24 Paragraph 8 of the Fundamental Law adopted in 2011 provides for the Chief Justice of the Constitutional Court to be elected by a two-thirds majority of Parliament.
With its two-thirds parliamentary majority, the Fidesz-KDNP party alliance can elect its nominees for Associate Justice and Chief Justice without winning the support of a single opposition member of parliament.
Pro-life civil law professor specializing in property law
Dr. Barnabás Lenkovics graduated summa cum laude from Eötvös Loránd University’s (ELTE) Faculty of Law and Political Science in 1974. Although Lenkovics spent much of the next 27 years teaching law at his alma mater as well as at the István Szechenyi University in Győr, he was not made a full professor until 2000.
According to professor of law Gábor Halmai, former director of ELTE’s Institute for Political and International Studies, Lenkovics’s appointment as professor was highly contested “due to the shortage of his academic performance, especially the lack of foreign language publications”. Halmai says that “as a legal scholar Lenkovics became famous as a militant opponent of abortion”.
In 2001 Lenkovics was elected ombudsman for fundamental rights, a post he held until his election to the Constitutional Court in 2007. Halmai notes that as an ombudsman Lenkovics “famously argued for a new jurisdiction of his office regarding private media and banks”.
Opposition MPs opposed
Today’s vote was boycotted by the Hungarian Socialist Party (MSZP). MSZP MP Gergely Bárándy, whose father served as Minister of Justice under former prime minister Péter Medgyessy, criticized Lenkovics for his political allegiance to the governing Fidesz-KDNP party alliance. Bárándy said his party could not support the Fidesz-KDNP nominee because of his earlier positions on religious discrimination, the forced retirement of judges, and changes to Budapest’s municipal election law many regard as unconstitutional (despite the Constitutional Court ruling otherwise earlier this year in a controversial decision Chief Justice Paczolay himself criticized for being “political in nature”).
Pointing out that 12 out of 15 Constitutional Court justices have been nominated by the governing party since 2010, Bárándy said a more suitable justice should have been nominated for the position–one capable of securing the support of parties on the left and the right. “[We wouldn’t have to look] further than the current Chief Justice, Péter Paczolay,” he said. According to Bárándy “[The court] has been stacked with people loyal” to Fidesz-KDNP.
Zsuzsanna Szelenyi of Together 2014 criticized Lenkovics for “having taken positions on issues related to property rights and freedom of the press which are completely at odds with the rule of law”.
Szabolcs Kerek-Barczy of the Democratic Coalition (DK) called on Lenkovics to turn down the appointment, arguing that the Constitutional Court is no longer a body capable of checking the power of the legislature or the executive. Instead, according to Kerek-Barczy, it has become “a body that serves the interests of the current government”.
Jobbik MP Gábor Staudt told reporters his party did not particiapte in the vote, not wishing to “legitimize the constitutional system created by Fidesz”. He said his party protests the failure of the governing parties to consult with the opposition prior to nominating the new constitutional court judges. Jobbik accuses Fidesz of modifying the court to its liking and passing laws which not only deprived people of the right to turn to the Constitutional court, but also greatly curtailed the rights of members of parliament to refer laws to the Constitutional Court for review. Such requests now require the signatures of 25 percent of parliamentarians.
Constitutional experts react
Halmai tells the Beacon that as an associate justice of the Constitutional Court in his opinion Lenkovics “argued that the financial crisis also meant the crisis of democracy, rule of law, and must cause the redefinition, limitation and even withdrawal of some fundamental rights, especially the freedom of the press, and a new concept of checks and balances, in which the different branches work closely together”.
Halmai recently told the Beacon that Hungary’s Constitutional Court has become a “political institution serving entirely the will of the government” and its decisions since April 2013 have been political decisions, “at least those decisions which are politically relevant and crucial for the government to win”.
According to Scheppele “when Fidesz’s constitutional dismantling project became clear after 2010 Chief Justice Péter Paczolay … mobilized almost all of the judges who had been appointed before 2010 to defend what the court had done. All except Lenkovics. Lenkovics was the only one of the judges appointed before 2010 who went over to the new Fidesz side.”
In Scheppele’s opinion “the Constitutional Court has been stripped of its critical power and it no longer stands as the guardian of the constitution against the excesses of majoritarian power”.
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